Fuller v New South Wales Department of School Education and Training

[2004] NSWCA 242

Reported Decision: (2004) Aust Torts Reports 81-756

Court of Appeal

CITATION:	FULLER v. NEW SOUTH WALES DEPARTMENT OF SCHOOL EDUCATION AND TRAINING [2004] NSWCA 242
HEARING DATE(S):	17/06/2004
JUDGMENT DATE:	16 July 2004
JUDGMENT OF:	Beazley JA at 1; Santow JA at 2; Stein AJA at 3
DECISION:	1. Appeal allowed; 2. Set aside verdict and judgment of Keleman DCJ; 3. Substitute verdict and judgment for the appellant; 4. Parties to file short minutes of order within 3 days of judgment being handed down to give effect to the Court's reasons; 5 The respondent to pay the appellant's costs of the appeal and of the trial.
CATCHWORDS:	NEGLIGENCE - Duty of care - Duty owed by employer to employee - Non-delegability - Duty of employer must take account of the possibility of inadvertent or negligent conduct of employees - Distinction between nature of duty owed to skilled tradesperson where appropriate equipment is supplied and duty owed to unskilled tradesperson where defective equipment supplied.
CASES CITED:	Andar Transport Pty Ltd v Brambles Ltd (2004) 206 ALR 387 Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414 McLean v Tedman (1984) 155 CLR 306 Moran v McMahon (1985) 3 NSWLR 700 O' Connor v Commissioner of Government Transport (1958) 100 CLR 225 Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES :	Wayne George Fuller (Appellant) New South Wales Department of School Education and Training (Respondent)
FILE NUMBER(S):	CA 40781/03
COUNSEL:	S.G. Campbell SC/S. McCarthy (Appellant) A. Hewitt SC/P.J. Gow (Respondent)
SOLICITORS:	Schrader & Associates (Appellant) Rankin & Nathan (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC11202/01
LOWER COURT JUDICIAL OFFICER :	Keleman DCJ

CA 40781/03
DC 11202/01

BEAZLEY JA
SANTOW JA
STEIN AJA

16 July 2004

FULLER – V- NSW DEPARTMENT OF SCHOOL EDUCATION AND TRAINING

The appellant, who was employed by the respondent as a part-time handyman at a local school, suffered injury when he fell from a defective ladder provided by the respondent. He brought proceedings against the respondent claiming that it had breached its duty of care to him.

The trial judge found that the appellant was an experienced building worker who was aware of the risk to which he was exposing himself so that the respondent had not breached its duty of care.

HELD per Stein AJA (Beazley and Santow JJA agreeing):

(i) An employer owes a common law duty to its employees to take reasonable care for their safety which encompasses an obligation to provide safe plant and machinery and a safe system of work. This duty is non-delegable and is imposed upon all employers however their business is formed or structured: Andar Transport Pty Ltd v Brambles Ltd (2004) 206 ALR 387.

(ii) The duty of an employer and an employee can never be co-extensive or co-terminous. The duty is that of an employer to ensure that reasonable care is taken: Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 ; Andar Transport Pty Ltd v Brambles Ltd (2004) 206 ALR 387 .

(iii) The duty of an employer must take account of the possibility of inadvertent or negligent conduct of employees: McLean v Tedman (1984) 155 CLR 306 .

(iv) The availability of another stepladder was not an answer to the respondent’s breach of duty in providing a defective piece of equipment. It was, however, relevant to the question of contributory negligence.

(v) Although there was no evidence that the principal had direct knowledge of the defective state of the ladder, the respondent should have had a system in place to see that all equipment was in proper condition.

(vi) O’Connor v Commissioner of Government Transport (1958) 100 CLR 225 and Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 are distinguishable on the bases ( inter alia ) that neither involved the supply of defective equipment and both concerned skilled and qualified tradespeople, unlike the appellant in this case who had no trade qualifications.

Orders

1. Appeal allowed.

2. Set aside verdict and judgment of Keleman DCJ.

3. Substitute verdict and judgment for the appellant.

4. Parties to file short minutes of order within 3 days of judgment being handed down to give effect to the Court’s reasons.

5. The respondent to pay the appellant’s costs of the appeal and of the trial.

CA 40781/03
DC 11202/01

BEAZLEY JA
SANTOW JA
STEIN AJA

16 July 2004

FULLER – V- NSW DEPARTMENT OF SCHOOL EDUCATION AND TRAINING

Judgment

1 BEAZLEY JA: I agree with Stein AJA.

2 SANTOW JA: I agree with Stein AJA.

3 I feel, however, that given the superficial similarity of the factual situations, it is appropriate to add by way of clarification a brief note on the ways in which this case is distinguishable from Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204. In that case, the fact that the plaintiff was a skilled and experienced contractor in the relevant line of work the services of whom the defendant company had gone to considerable lengths to acquire, tended to negate the reasonable foreseeability of the risk of harm he ultimately suffered. Moreover, and crucially, the equipment supplied by the defendant to Van der Sluice was not demonstrated to be defective or unfit for the task. Rather it was the failure of the plaintiff to take rudimentary safety precautions which resulted in his injury. Thus Van der Sluice ultimately involved a self-evident danger which no adult needed to be warned against and which he could be trusted to guard against.

4 By way of contrast, this case involved the supply by the employer to an unskilled workman of a defective ladder which was not reasonably fit for its purpose. Mr Fuller was not a skilled and experienced contractor but an employee. The removal of one part of the ladder gave rise to a danger which certainly was not hidden, but which was not a self-evident danger in the Van der Sluice sense either. Also, the ladder here was supplied by the employer in the particular place of work (namely the school hall) in which Mr Fuller was to use it, and as such was impliedly held out by the School as suitable for the purpose for which he in fact used it. In these circumstances there was an implied invitation to use it, rather than the other aluminium stepladder which was not at hand in the hall and was frequently not in the storage cupboard and was not there on the day of the accident. These facts of themselves distinguish this case from Van der Sluice. The employer was clearly obliged to provide safe equipment and a safe system of work. The danger though not hidden was not self-evident and on a Shirt calculus of reasonableness (Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J at 47-48), there was a failure by the employer to take necessary steps judged reasonable in the circumstances in order to discharge its duty.

5 The comments of Heydon JA at [63] in Van der Sluice are apposite where he quotes from Glass, McHugh and Douglas, “The Liability of Employees in Damages for Personal Injury” (2nd ed 1979) pp 45-6:

“An area is marked out within which the employer’s duty to provide a safe system of work is inoperative. It would appear that the immunity of the employer will be limited to isolated operations of no complexity outside the normal system or simple uncomplicated operations within it … The only unifying principle available is the power of the court to hold that on the evidence in the particular case it would be beyond all reason to find an employer in breach of duty for failure to take certain specified steps.”

6 In the circumstances referred to above, and for the reasons set out by Stein AJA, this is most certainly not a case where it would be beyond all reason to find the employer in breach of its duty. Van der Sluice has no application in this case.

7 STEIN AJA:

Introduction

This is an appeal from the District Court wherein the appellant, Wayne George Fuller, unsuccessfully sued his employer, the NSW Department of School Education and Training, for damages for personal injury suffered at work. His Honour Judge Keleman entered a verdict for the defendant/respondent.

Facts

8 The appellant was employed for three days per week as a general- assistant or handyman at a public school at Greystanes. On 10 September 1997 he was directed by the principal, a Mr Barr, to hang some house banners in the assembly hall. The floor of the hall was polished wood and shiny. A timber ladder was kept in the hall and had been used in the past to take down banners and other items from the wall, and cleaning the guttering outside.

9 At the time of Mr Fuller’s accident only the front part of the timber step ladder was available for use. Apparently the other handyman employed at the school had disassembled the step ladder at some prior time. This meant that the wooden ladder had no rear supporting frame or ropes. It also had no feet or slip resistant adhesive material attached to the feet.

10 Apparently the school also had an aluminium step ladder, which was usually kept in the general assistant’s store although could often be found anywhere in the school.

11 The appellant did not look for the aluminium step ladder but used the wooden ladder in the hall. Indeed, he had used it on around a half a dozen occasions before for the same task. He placed the timber ladder against the wall where the banners were to be hung. There were folding chairs stacked against the wall between the ladder and the wall. Mr Fuller hung the first banner then moved the ladder to hang the second banner. He climbed the ladder with the banner and, as he reached up to put the dowel over the hooks, the bottom of the ladder shifted away from the wall and the ladder slid down the wall causing the appellant to fall causing injury to his shoulder and some ribs.

The judgment below

12 His Honour said that the appellant was an experienced building worker who knew of the risk he was exposing himself to. The judge accepted the appellant as a truthful and reliable witness and found that at the time of the accident the ladder consisted only of the front timber frame with steps. His Honour also found that the ladder did not comply with the relevant Australian Standard.

13 The trial judge found:

…there is no doubt from the expert report that if the wooden ladder was used in the manner asserted by the plaintiff on the day of the accident, namely by leaning it against the wall in the assembly hall it was unsuitable and unsafe as the raw timber feet of the ladder were shaped to maximise floor contact when used correctly as a self supporting A-frame stepladder and when placed against the polished timber floor boards of the hall floor would result in very little friction and once the ladder was loaded with a person’s weight, that is, when climbed, it would be likely that the feet of the ladder would start to slide away from the wall causing the ladder to slip on the floor.

14 After referring to McLean v Tedman (1984) 155 CLR 306 at 312-313 his Honour said that an employer is not in breach of its duty in leaving a simple and uncomplicated task to an employee, citing Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 per Heydon JA.

15 His Honour said:

No instructions were given to the plaintiff concerning how to carry out the task of rehanging the banners. He carried out that task on a number of occasions previously without incident. While the wooden ladder he chose to carry out the task was conveniently located in the hall, he was fully aware of the risk of the feet of the ladder slipping on the polished wooden floor of the hall if he climbed the ladder. He was also aware at the time there was an aluminium stepladder available at the school. However he mistakenly believed that the aluminium stepladder was not high enough to hang the banners so he did not consider using it. There is no evidence that he ever took the aluminium ladder to the hall to check the correctness of that belief. That would have been a practicable, simple, quick and easy step to undertake. Had he done so he would have readily ascertained that the aluminium step ladder, which also had rubber feet, was sufficiently high enough when the A frame was fully extended to accomplish the task of hanging the banners without the risk of the ladder slipping on the polished wooden floor if he climbed it and without the acknowledged further risks of him having to climb above the second step from the top of the stepladder.

16 The learned judge went on to say that the appellant was experienced in the use of ladders and was “aware of the inherent risk or danger of the wooden ladder slipping if he used it in the manner he did.”

17 His Honour stated:

The defendant was entitled to assume that an employee, who had identified a risk of harm or danger in carrying out a task, would not choose to carry out that task in the manner which the plaintiff knew posed that danger or risk of harm. The plaintiff had available to him an aluminium stepladder provided by the defendant, which would have effectively eliminated the danger that arose when the plaintiff chose to use the wooden ladder in the manner he did to carry out the task, fully aware of the risk that such use would create.

18 His Honour found that the risk was obvious to any adult and was not reasonably foreseeable to the respondent who was entitled to assume that the appellant would exercise reasonable care for his own safety. It was also too remote a risk to guard against. Accordingly, there was no breach of the respondent’s duty of care.

Consideration of liability

19 The duty of care of an employer to an employee has recently been revisited by the High Court in Andar Transport Pty Ltd v Brambles Ltd (2004) 206 ALR 387.

20 In the joint judgment of Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ it is stated:

[34] It is well accepted that, in the absence of statutory provisions to the contrary, an employer owes a common law duty to its employees to take reasonable care for their safety. The duty encompasses an obligation to take reasonable steps to provide safe plant and machinery and a safe system of work. Of particular significance in the present case are two features of the duty. The first is its non-delegability. In Kondis v State Transport Authority , (1984) 154 CLR 672 at 694 Deane J said:
[I]n the context of the particular relationship of employer and employee and of the undertaking by the employee of the general obligation to work in the interests of the employer, the content of the employer's duty to take reasonable care to provide a safe system and conditions of work for the employee is not discharged by delegation unless the delegate, be he employee or independent contractor, in fact provides the reasonable care which the employer was under an obligation to bring to bear.
The second feature to be noted is that the duty is imposed upon all employers, however the business be formed or structured. As Lord Wright noted in Wilsons and Clyde Coal Co Ltd v English; [1938] AC 57 at 84:
[T]he whole course of authority consistently recognizes a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm, or a company, and whether or not the employer takes any share in the conduct of the operations . (emphasis added)

21 Their Honours considered the statement by Pearson J in Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414 posing the question: Whose fault was it? Of this approach they said:

[44] Unlike the statutory duties construed in Ginty and its successors, the common law duty to take reasonable care for the safety of employees is imposed solely upon an employer. No equivalent duty was imposed upon Mr Wail in his capacity as employee. In such circumstances, questions such as "Whose fault was it?" are apt to mislead. This is because any breach of duty committed by Andar was inherently different in scope and effect from any negligence of Mr Wail at the time of the accident. It must follow that the requirement of co-extensiveness necessary in order to take advantage of the reasoning evident in cases such as Ginty did not exist in the present case. In Nicol, in a passage with which we agree, Dawson J said (1987) 163 CLR 611 at 625:
[I]t does not seem to me that the duty of an employer and an employee in such regard can ever be co-extensive or co-terminous. The duty is that of the employer and even if the employee is entrusted with its performance it remains an independent obligation of the employer of a more comprehensive kind to ensure that reasonable care is taken.

22 McLean v Tedman considered the situation where an employer has no control over an employee’s negligence or inadvertence. Mason, Wilson, Brennan and Dawson JJ said that the standard of care required an employer to take account of the possibility of inadvertent or negligent conduct of employees.

23 They said:

The employer’s obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.
Many statements are to be found in the cases which give emphasis that in discharging his duty to take reasonable care to avoid injury to his employee an employer is bound to have regard to any risk of injury that may occur by reason of an employee’s inadvertence, inattention or misjudgment in performing his allotted task. [at 312]

24 The most obvious and undisputed fact here is that the employer supplied a defective ladder to the appellant to do the job. The ladder was only part of a step ladder which had been taken apart. The remaining part- the steps - had no “feet” or non-slip adhesive application to prevent slipping. It was kept in the hall for precisely a job such as this. One might ask, why otherwise was it kept there?

25 The fact that another metal step ladder was available somewhere on the school grounds does not alter the fact that a defective piece of equipment was supplied to the appellant to do the job asked of him.

26 Moreover, his Honour elevated the appellant’s evidence of his awareness of the risk. In cross-examination the appellant said that he thought that the ladder supplied by the school was a safe one. He was asked and answered:

Q. As an experienced building worker you knew that if you put a timber ladder like that one on a polished timber floor there was some risk that it might slip out from under you, didn’t you?
A. There could be a risk of it, yes.
[My emphasis added]

27 I do not think that it is correct to elevate this answer, along with the other relevant evidence, to a finding that the appellant was “fully aware” of the particular risk.

28 There is no doubt that in using the defective ladder the appellant made a misjudgment. He had apparently used the ladder on six previous occasions without mishap. The other ladder was elsewhere, somewhere around the school grounds. Additionally, he believed (erroneously) that it wasn’t tall enough for the job. The danger was not necessarily so obvious.

29 There was no evidence that the principal had direct knowledge of the defective state of the ladder but the respondent should have had a system in place to see that all equipment was in proper condition. There was no evidence that it had any checking system for equipment.

30 I do not think that the respondent can avoid liability by blaming the appellant. It owed the appellant a non-delegable duty of care. It had the responsibility to see that a defective ladder was not present in the assembly hall where it could be, and indeed was, used.

31 The facts are inescapable that the respondent provided the appellant with defective equipment which he, unsurprisingly, used. The defective ladder should not have been in the assembly hall virtually inviting use. There was no explanation advanced by the respondent of why the defective ladder was in the hall or why it was not removed.

32 Reliance was placed by the respondent on O’Connor v Commissioner of Government Transport (1958) 100 CLR 225. However, unlike here, there was no question of defective plant or equipment involved. Suitable and safe equipment was supplied. Further, O’Connor was a skilled and qualified tradesman as compared with the appellant who had no trade qualifications.

33 Van der Sluice is also distinguishable. He was not an employee but an independent contractor. The duty of care was not non- delegable. Mr Van der Sluice was a highly skilled and experienced person who had done the job before. He supervised others. He was not a three day a week casual handyman. Nor was there anything defective in the ladder used by him.

34 Counsel for the respondent relied on the principal not knowing of the defective ladder and relying on the appellant to repair it or bring it to notice. He said that the principal was not an expert and the plaintiff was the handyman. I do not see that these circumstances relieve the respondent of its non-delegable duty of care to an employee. The department had a duty to see that it did not provide unsafe or defective equipment to employees and it had no system in place to check for unsafe equipment. Nor do I accept that it was up to the appellant to reassemble the ladder. He was not asked to and he assumed that the other handyman had disassembled it for good reason.

35 In my opinion the respondent was in breach of its duty of care owed to the appellant.

Contributory Negligence

36 There is no doubt that the appellant was contributorily negligent. He could have asked someone to hold the ladder while he climbed up or he could have gone looking for the metal ladder. He was aware that there was some risk involved which he took. I would assess contributory negligence at 20%

Damages

37 While finding a verdict for the defendant his Honour went on to assess damages. His assessment of non-economic loss and economic loss are in issue.

38 His Honour assessed the non-economic loss at 25% of a most extreme case. It is contended that it should have been between 30 and 35%. The judge was perfectly entitled to find as he did and it would be inappropriate for this court to intervene when the award was in the discretionary range, see Moran v McMahon (1985) 3 NSWLR 700.

39 As to economic loss, his Honour considered the evidence and concluded that the appellant had about one-third residual earning capacity based on employment for 3 days per week. Again, those conclusions were open to his Honour and no error in principle is apparent. I would dismiss the damages appeal.

Conclusion

40 The appeal should be allowed with costs and the appellant is entitled to have his Honour’s verdict and judgment set aside and a verdict in substitution, reduced by 20% for contributory negligence. The parties should file short minutes of order within 3 days.

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Last Modified: 07/26/2004